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not surprising, therefore, that the courts permitted bailors to sue
in case. The innovation would seem to have come in as early as
1449.[1] The plaintiff counted that he delivered to the defendant
nine sacks of wool to keep; that the defendant, for six shillings
paid him by the plaintiff, assumed to keep them safely, and that
for default of keeping they were taken and carried away. It was
objected that detinue, and not case, was the remedy. One of the
judges was of that opinion, but in the end the defendant abandoned
his objection; and Statham adds this note: …“et credo
the reason of the action lying is because the defendant had six
shillings which he [plaintiff] could not recover in detinue.” The
bailor’s right to sue in case instead of detinue was recognized
by implication in 1472,[2] and was expressly stated a few years
later.[3]

The action against a bailee for negligent custody was looked
upon, like the action against the surgeon or carpenter for active
misconduct, as a tort, and not as a contract The immediate cause
of the injury in the case of the bailee was, it is true, a nonfeasance,
and not, as in the case of the surgeon or carpenter, a misfeasance.
And yet, if regard be had to the whole transaction, it is seen that
there is more than a simple breach of promise by the bailee. He is
truly an actor. He takes the goods of the bailor into his custody.
This act of taking possession of the goods, his assumpsit to keep
them safely, and their subsequent loss by his default, together
made up the tort. The action against the bailee sounding in tort,
consideration was no more an essential part of the count than
it was in actions against a surgeon. Early in the reign of
Henry Ⅷ., Moore, Sergeant, said, without contradiction, that a
bailee, with or without reward, was liable for careless loss of goods
either in detinue or case;[4] and it is common learning that a gratuitous
bailee was charged for negligence in the celebrated case
of Coggs v. Bernard. If there was, in truth, a consideration for
the bailee’s undertaking, the bailor might, of course, declare
in contract, after special assumpsit was an established form of
action. But, in fact, there are few instances of such declarations
before the reign of Charles Ⅰ. Even since that time, indeed, case